Madras High Court: N. Anand Venkatesh, J., issued interim directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life of their choice.
De-stigmatization and acceptance in the eyes of society.
Crux of the Case:
Petitioners, a lesbian couple whose relationship was being opposed by their parents fled to Chennai from Madurai.
Further, the petitioners with the support extended by certain NGOs and persons belonging to LGBTQIA+ Community managed to secure accommodation and protection and were in search of employment. Meanwhile, the respondents i.e. the girl’s parents filed missing complaints. Later, on apprehending threat to their safety, the petitioners approached this Court and sought a direction from the police not to cause harassment and protection from any form of threat or danger.
High Court vide its Order dated 28-04-2021, had requested for the counselling of the parents and a report to be submitted before the Court. In the decision, Court had also expressed that:
I want to give myself some more time to churn. Ultimately, in this case, the words must come from my heart and not from my head, and the same will not be possible if I am not fully “woke” on this aspect. For this purpose, I want to subject myself for psycho-education with Ms.Vidya Dinakaran and I would request the psychologist to fix a convenient appointment for the same. I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart.
Counselling Psychologist submitted its report in the Court, which revealed that there was no substantial or marked change noticed in the attitude of the parents during the second counselling session. At the best, one of the parents had the heart to let their daughter alone to live their life even though they were not able to accept their same-sex relationship with the other Petitioner. Even though the counselling of the parents did not ultimately end up with the desired result, this Court atleast has the satisfaction of making all efforts to assuage their feelings, and to ensure that they were not left in the lurch in this journey.
Bench itself went under a counselling session and gained a great amount of insight and understanding and felt that further interaction with person(s) who belong to the LGBTQIA+ community would be greatly instrumental to help myself understand the ground realities, emotions, social discrimination and exclusion and several other difficulties faced by the community.
Bench also interacted with a transwoman who had successfully broken the shackles laid by the society on the LGBTQIA+ community.
The above session ultimately convinced the Bench that it must change all the preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are.
I must frankly confess that the Petitioners, Ms. Vidya Dinakaran and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance).
Understanding the concept of LGBTQIA+ Community
Unlike regular litigations, the present case has given this Court, not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition. That being said, I also felt that I remove the “Lordship’s” hat and instead wear the hat of the average commoner in the society, who have not given thought to understand or accept, who are attempting to understand, who totally refuse to understand or accept the LGBTQIA+ community. I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination.
Society and my upbringing have always treated the terms “homosexual”, “gay”, “lesbian” as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions.
Court added that the only reason for referring the petitioners to counselling was to enable the Bench to understand something more about the said relationship from a professional.
In order to appreciate the controversy raised in the present case, Bench briefly traced the development of Article 15 of the Constitution and to notice the developments across the globe on the interpretation of similar non-discriminatory provisions.
High Court issued the following interim guidelines/directions:
A. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
B. Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.
C. Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.
D. NGO concerned shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the Ministry concerned bi-annually.
E. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.
F. With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and “garima greh” (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity- building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks.
G. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.
H. For the sake of creating awareness, the Court suggested certain sensitisation programs to be conducted by the Ministry concerned of the Union/State Government(s).
Matter to be posted on 31-08-2021 for passing further orders. [S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096, decided on 7-06-2021]
Advocates before the Court:
For Petitioner : Mr. S. Manuraj
For Respondents 1, 2, 5 & 6 : Mr. Hasan Mohammed Jinnah State Public Prosecutor
For Respondent No. 3 : Mr. Mithelesh
For Respondent No. 4 : Mr. P. Thilak Kumar
For Respondent Nos. 7, 8, 9, 17 & 18 : Mr. Shanmugasundaram Advocate General Assisted by Ms. Shabnam Banu Government Counsel
For Respondent Nos. 10 to 16, 19, 20, 21, 22 & 23 : Mr. Shankaranayanan Additional Solicitor General Assisted by Mr. V. Chandrasekar Central Government Standing Counsel